TERMS OF SERVICE
1.1 Depending on the type of account a user holds, the App may allow users to:
(a)Track the acceleration "power band" of a training piece;
(b)Track the speed and distance travelled;
(c)Track the course travelled;
(d)Analyse captured data;
(e)Share data with other users;
(f) Access the captured data of other users by being designated as that user’s coach.
As more fully described in items C and D of these Terms of Service.
A key definitions
A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning (additional definitions are found in the General Conditions):
(a)Act means the Corporations Act 2001 (Commonwealth) and includes any regulations, or regulatory guide made pursuant to the Act.
(b)Agreement means these Terms of Service.
(c)App means the Application that is available via:
i Mobile. The native mobile application “Rowlytics” available from Apple’s AppStore, GooglePlay and any other native or web-based mobile applications made available from time-to-time; and/or
ii Web. From the application accessed through the URL http://www.rowlytics.com (or other domain as used by Rowlytics from time-to-time).
(d)Coach Account means an account held by Premium User that includes a licence to access the features of the App associated with a coach account as advertised on the Website.
(e)Company means Rowlytics.
(f) Fee means any fee payable by a Premium User for access to, or use of the App.
(g)Free Account means a registered account held by Free User that includes a licence to access the features of the App associated with a Free Account.
(h)Free User means a user of the App that does not hold a Premium account, and includes a user that has not registered.
(i) Premium Account means an account held by a Premium User that includes a licence to access the features of the App associated with a premium account as advertised on the Website.
(j) Premium User means a User that creates a Premium Account or Coach Account.
(l) Services means the services provided by Rowlytics through the App.
(m) Third Party means any person that is not a User.
(n)User means a Free User or Premium User.
(o)Website means www.rowlytics.com.
(a)Free Users (Item C)
(b)Premium Users (Item D)
B.2 In addition to any other express or implied consents, by using the App the User accepts and agrees to the terms of:
(a)This Agreement; and
C.1 The App may enable a Free User to:
(a) Track the acceleration "power band" of a training piece;
(b)Track the speed and distance travelled;
(c)Track the course travelled;
(d)Analyse captured data;
C.2 The Free User agrees and accepts that:
(a)A Free User may use the App for free without registering an account. However if a Free User wishes to use any of the features associated with a Premium or Coach Account, the Free User must register as Premium User.
(b)By using the App a User accepts these Terms of Service. If a User does not accept these Terms they must stop using the App.
(c)A registered Free User account may only be accessed by one mobile device.
(d)Only persons over the age of 18 may use the App and all Users must be capable of forming binding legal contracts;
(e)When registering a Free User account, the Free User may be required to verify their identity by (without limitation) email, telephone number, residential or business address, social media, referrals, references and/or formal photographic identification;
(f) Rowlytics may restrict access to the App from any location;
(g)The Free User uses the App at its own risk. To the extent permitted by law, under no circumstance will Rowlytics be liable for any injury, illness, death or damage to property resulting from the use of the App.
(h)To the extent permitted by law, Rowlytics accepts no liability for the accuracy of any information made available using the App. Any reliance on the information available through the App is at the Free User’s own risk.
(i) The Free User indemnifies Rowlytics against all costs, claims damages and expenses for any loss or damage caused to the person or property of a Third Party as a result of the User’s use of the App;
(j) Any consent or statement made by the Free User through the App is valid and binding unless and until revoked by the Free User, and Rowlytics may rely on a consent or statement made through the App without any need to further verify the veracity of that consent;
(k)It shall only use the App for its intended purpose as set out in this Agreement;
(l) All information input into the App about a Free User is provided with that Free User’s consent.
(m) The App may be hosted on servers located outside Australia and may also use email servers located outside of Australia.
D.1 The App may enable a Premium User to:
(a)Track the power output of each stroke;
(b)Track the speed and distance travelled;
(c)Track the course travelled;
(d)Analyse captured data;
(e)Share captured date with other Users of the App;
(f) Create a Coach Account that enables Premium Users to:
i Receive detailed captured data on users that have nominated the holder of the Coach Account as their coach; and
ii Take advantage of any other features that Rowlytics will make available to holders of Coach Accounts from time to time.
D.2 In addition to the Free User terms, a Premium User agrees and warrants that:
(a)A Premium User is not granted a licence to access the features of the App associated with a Premium Account until:
i The Fees for registering a Premium Account have been received by Rowlytics; and
ii Registration of a Premium Account is confirmed by Rowlytics.
(b)Its licence to use the App as provided for in the General Conditions, is subject to the payment of all necessary Fees.
(c)A Premium User licence to access the App is limited to one mobile device. An additional Premium User account must be subscribed for, for each additional mobile device the Premium User wishes to access the features associated with a Premium User account on.
D.3 Coach Accounts:
(a)A Premium User that holds a Coach Account agrees and warrants that:
i It shall only have access to the Premium Accounts of Premium Users that have nominated the holder of the Coach Account as their coach;
ii It shall not store or record any Personal Information that it can access through the App unless it is fully compliant with the Privacy Act;
iii It shall ensure all personal information it has access to through its use of Rowlytics is kept and used in accordance with applicable privacy laws in the jurisdiction;
D.4 Fees & Charges:
(a)The fees charged for a Premium Account or Coach Account will be stated on the Rowlytics website and may change from time to time, at Rowlytc’s absolute discretion. Rowlytics will notify a Premium User of any changes to fees in writing.
(b)Despite any Fees paid, Rowlytics makes no representation that a Premium User will achieve improved rowing or fitness results. Fees are payable in exchange for access to additional features only.
(c)Where a Fee is paid for a particular period of time, the Premium User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using the App within that period.
(d) Rowlytics will not offer refunds except as required by law.
E.1 The User uses the App at its own risk. To the extent permitted by law, under no circumstance will Rowlytics be liable for any injury, illness, death, damage to or loss of property resulting from the use of the App.
E.2 It is the User’s responsibility to:
(a)Correctly and safely row; or
(b)Instruct a rower; and
(c)Correctly use the App.
E.3 The User indemnifies Rowlytics against all costs, claims, damages and expenses for any injury or damage caused to the person or property of a third party as a result of the User’s use of The App.
F Term & limitations
The User’s license to access the App shall be ongoing until terminated by The Company in accordance with this Agreement.
(a)The User must register an account in the App to use the App.
(b)The Company may set any registration requirements in its absolute discretion.
H confidential information
H.1 The Company will keep confidential all information that it becomes aware of regarding the User’s:
(b)Business, employees and contractors;
I.1This Agreement may be terminated at any time by:
(a)Written notice of one party to the other; or
(b)By cancelling or otherwise terminating your account through the App.
I.2Deleting the App does not constitute termination of this Agreement, although Rowlytics may terminate this Agreement in the event it determines in its reasonable discretion that the App has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
I.3The User agrees and accepts that deletion of the App may result in loss of data for which Rowlytics is in no way liable.
J disclaimer – third party INFORMATION & services
J.1 The User acknowledges that the App:
(a)Is dependent on third-party services, including but not limited to:
i Banks, credit card providers, BPAY;
ii Telecommunications services;
iii Hosting services;
iv Email services; and
v Analytics services.
(b)Provides links to third party websites containing (without limitation) health information.
J.2 The User agrees that Rowlytics shall not be responsible or liable in any way for:
(a)Interruptions to the availability of the App due to third-party services; or
(b)Information contained on any linked third party website.
K.1 Governing Law. Victoria, Australia
K.2 Reference City. Melbourne.
1.1 The User wishes to access the App provided by The Company.
1.2 The terms and conditions in this Agreement govern the provision of the App to the User by Rowlytics.
2.1 The following definitions apply in this document:
(a)ABN means Australian Business Number.
(b)ACN means Australian Company Number.
(c)Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item K of the Important Terms.
(d)Company means Rowlytics.
(e)Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:
i All technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;
ii All business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists;
iii All financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;
iv All information concerning any employee, customer, contractor, supplier or agent of the relevant party;
v The party's policies and procedures; and
vi All information contained in this document,
But excludes information that the other party can establish:
viiIs known by or is in the other party's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
viii Is in the public domain other than by a breach of this document or any obligations of confidence.
(f) Corporations Act means the Corporations Act 2001 (Cth).
(g)Fees mean the fees and charges as set out in the Important Terms.
(h)Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
i Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
ii Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
iii The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
iv Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(i) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(j) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(k)Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(l) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(m) Health Information has the meaning given to it in the Privacy Act.
(n)Moral Rights means:
i Moral rights pursuant to the Copyright Act 1968 (Cth);
ii Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(o)Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(p)Pricingmeans the pricing as notified to the User in writing by Rowlytics from time-to-time.
(q)Privacy Act means the Privacy Act 1989 (Cth).
(r) Solution means the solution described in the Important Terms.
(s)Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(t) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(u)User Content means data that is uploaded or input into the App by the User or that forms part of the User’s Intellectual Property.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a)The singular includes the plural and the opposite also applies.
(a)If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b)A reference to a clause refers to clauses in this Agreement.
(c)A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
(d)Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e)A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g)A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
3 APPLICATION of this agreement
3.1 This Agreement applies to use of and access to the App.
3.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using the App.
3.3 This Agreement may be updated by Rowlytics at its absolute discretion from time-to-time, and unless stated otherwise by Rowlytics in writing, such updates shall come into effect for use of the App at the User’s next login after the User receives written notice of the update(s).
4 the App product
4.1 the App is the product described in the Important Terms.
4.2 the App is only accessible to the User for the term set out in the Important Terms.
4.3 The User agrees and accepts that the App is:
(a)Hosted by Rowlytics and shall only be installed, accessed and maintained by Rowlytics, accessed using the internet or other connection to Rowlytics servers and is not available ‘locally’ from the User’s systems; and
(b)Managed and supported exclusively by Rowlytics from Rowlytic's servers and that no ‘back-end’ access to the App is available to the User unless expressly agreed in writing.
4.4 As a hosted and managed service, Rowlytics reserves the right to upgrade, maintain, tune, backup, amend, add or remove features and Exercises, redesign, improve or otherwise alter the App.
4.5 The Company shall not exercise its rights under clause 4.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of the App to the User, other than in accordance with the terms of this Agreement.
5.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use the App for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
5.2 The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
5.3 The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
6.1 The User agrees that it shall only use the App for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Rowlytics in its discretion.
7 AUTHORISED USERS
7.1 The User shall authorise users to access the App in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
7.2 The User is solely responsible for the security of its username and password for access to the App.
7.3 The User shall notify Rowlytics as soon as it becomes aware of any unauthorised access of its App account.
8 CUSTOMER DATA
8.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
8.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
8.3 Despite clause 8.1 Rowlytics shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 10 and 11.
8.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for the App).
9.3 The Company makes no warranty as to the suitability of the App in regards to the Organisation’s privacy obligations at law or contract, and it is the Organisation’s responsibility to determine whether the App is appropriate for the Organisation’s circumstances.
10.1The User agrees to pay all Fees as and when they fall due and to the extent permissible by law. Fees are non-cancellable and/or non-refundable once ordered or paid.
10.2The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
10.3The Company shall maintain all Fees for the term of the licence paid for by the Organisation.
10.4The Company shall notify the User of any changes to existing Fees no less than 14 days before the end of the term of the Organisation’s licence.
10.5The Company may revoke or suspend the User’s license to access the App for unpaid Fees without liability.
(a)Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
(b)Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then
The User agrees that Rowlytics shall be entitled to charge the User an additional amount that is reasonable for the service performed.
10.7All transactions are processed in Australian dollars and conversion rates may apply for foreign currencies.
10.8GST is applicable to any Fees charged by Rowlytics to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
10.9No refunds of Fees are offered other than as specified in this Agreement or as required by law.
11INVOICING & PAYMENTS
11.1The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
11.2The terms of payment set out in the Fees shall apply.
11.3Should the User dispute a Tax Invoice, the User must notify Rowlytics of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
11.4Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
11.5The User authorises Rowlytics to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.
12.1Security. The Company takes the security of the App and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of Rowlytic’s systems or the information on them.
12.2Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
12.3Storage. The Company may limit the amount of data that the User stores in the App, and shall advise the User of such. Data that is stored with the App shall be stored according to accepted industry standards.
12.4Backup. The Company shall perform backups of the App in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by Rowlytics.
13.1By accepting the terms of this Agreement the User agrees that Rowlytics shall provide access to the App to the best of its abilities, however:
(a)Access to the App may be prevented by issues outside of its control; and
(b)It accepts no responsibility for ongoing access to the App.
13.2Users may prepare for unscheduled unavailability of the App by:
(a)Keeping their the App mobile app up to date, which will store local copies of the data; and
(b)Printing hard copies of reports.
14.1Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of Rowlytics.
14.2Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which Rowlytics has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of the App.
14.3The the App Application. The User agrees and accepts that the App is the Intellectual Property of Rowlytics and the User further warrants that by using the App the User will not:
(a)Copy the App or the services that it provides for the User’s own commercial purposes; and
(b)Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the App or any documentation associated with it.
14.4Content. All content (with the exception of User Content) remains the Intellectual Property of Rowlytics, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to the App.
15.1The information and classes of information set out in the Important Terms are Confidential Information for the purposes of this Agreement. In default, information relating to the business operations, personal information and other information that should be confidential is Confidential Information.
15.2Each party acknowledges and agrees that:
(a)The Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
(b)It owes an obligation of confidence to the Discloser concerning the Confidential Information;
(c)It must not disclose the Confidential Information to a third party except as permitted in this Agreement;
(d)All Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
(e)Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
15.3A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
(a)Any actual, suspected, likely or threatened breach by it of clause 15.1;
(b)Any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
(c)Any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
15.4The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
(a)Any actual, suspected, likely or threatened breach of a term of this Agreement; or
(b)Any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
16LIABILITY & INDEMNITY
16.1The User agrees that it uses the App at its own risk.
16.2The User acknowledges that the App does not provide fitness or rowing technique advice, nor does it hold itself out to provide such advice.
16.3The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
16.4The User acknowledges that Rowlytics is not responsible for the conduct or activities of any user and that Rowlytics is not liable for such under any circumstances.
16.5The User agrees to indemnify Rowlytics for any loss, damage, cost or expense that Rowlytics may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with the App, including any breach by the User of these Terms.
16.6In no circumstances will Rowlytics be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use the App or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Rowlytics knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
16.7Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, Rowlytics and Rowlytic’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, Rowlytic’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at Rowlytic’s option to:
(a)The re-supply of services or payment of the cost of re-supply of services; or
(b)The replacement or repair of goods or payment of the cost of replacement or repair.
17.1Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach that must set out:
(a)The nature of the breach;
(b)The provisions of the Agreement that are alleged to have been breached;
(c)A reasonable timeframe to remedy the breach in no less than 10 Business Days; and
(d)The action required to remedy the breach.
17.2Where a party issues a compliant Breach Notice in accordance with clause 17.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice. Failure to respond in writing setting out:
(a)The steps taken to remedy the breach; or
(b)Why the party believes it is not in breach as put forward in the Breach Notice,
(c)Shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement.
17.3Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement (Material Breach).
18.1Breach. Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 Business Days after the date of the notice.
18.2Insolvency. Either party may terminate this Agreement immediately by notice, if either party:
(a)Stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(b)Is insolvent within the meaning of section 95A of the Corporations Act;
(c)Fails to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act) unless:
i The debt to which the statutory demand relates is discharged within 15 Business Days of the date of the failure; or
ii The party demonstrates to the satisfaction of the other party (acting reasonably) that it is able to pay all its debts as and when they become due and payable;
(d)Has an administrator appointed in respect of it;
(e)Has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to the whole or a substantial part of its assets or undertaking and that controller or similar officer is not removed within 15 Business Days of the appointment;
(f) Has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(g)Has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
(h)Is subject to any event, which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
18.3Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
18.4The rights and obligations under the relevant provisions of clauses 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21 and 21.6 survive termination of this Agreement.
19.1All disputes shall be handled in accordance with Rowlytic’s dispute resolution policy.
19.2Where Rowlytics does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a)Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b)Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 19.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c)Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d)Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
20.1If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a)Specify the obligations and the extent to which it cannot perform those obligations;
(b)Fully describe the event of Force Majeure;
(c)Estimate the time during which the Force Majeure will continue; and
(d)Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
20.2Following a notice of Force Majeure in accordance with clause 20.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
20.3The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
20.4The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
20.5The term of this Agreement will not be extended by the period of Force Majeure.
21ELECTRONIC COMMUNICATION, amendment and assignment
21.1The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
21.2The User can direct notices, enquiries, complaints and so forth to Rowlytics as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
21.3The Company will send the User notices and other correspondence to the details that the User submits to Rowlytics, or that the User notifies Rowlytics of from time-to-time. It is the User’s responsibility to update its contact details as they change.
21.4A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
21.5Notices must be sent to the parties’ most recent known contact details.
21.6The User may not assign or otherwise create an interest in this Agreement.
21.7The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
22.1Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
22.2Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
22.3Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
22.4Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
22.5Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
22.6Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
22.7Governing Law. This Agreement is governed by the laws of the state set out in item K of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
22.8Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END GENERAL CONDITIONS